Judge: GPS tracking evidence can be used in burglary case

The
Athens County Prosecutor's office claims that a Nelsonville man who's charged
with a string of burglaries made the rather serious mistake of committing them
while wearing an electronic ankle monitor, which places him at the scenes of
multiple crimes through satellite tracking.

The
man's defense attorney, however, has argued that the state shouldn't get to use
information from the monitor, unless it can offer expert testimony that it's
reliable, and was working properly on the days in question.

Shane
Benson, 32, is facing multiple felony charges for alleged break-ins in Athens
and Nelsonville. During the time the state claims the burglaries occurred,
Benson was wearing a monitor from a previous criminal case in Fairfield County,
which tracked his movements with a global positioning system (GPS).

Attorney
Eric Hedrick of the Ohio Public Defender's office argues that if the
prosecutor's office wants to use the monitor data against Benson, it should
have to show in court that data from the device is scientifically reliable, and
that the people who do the tracking are qualified to operate it.

"Their
entire case… is, 'We have (Benson) at certain addresses at times that we
believe fall within the margin of the times that some homeowners thought they
were burglarized,'" Hedrick said Friday. "They have no DNA, they have no
fingerprints, and they have no recovered (stolen) items."

Given
that the state's entire case appears to rest on the monitor putting him at or
near the sites of alleged burglaries at or near the times they're alleged to
have happened, Hedrick suggested, the court should make the state produce
evidence that the monitor can be trusted. He compared the device to, for
instance, an alcohol breath-tester, whose operators must be legally qualified
in order to use its findings as evidence in court.

Athens
County Prosecutor Keller Blackburn wouldn't comment on Hedrick's claim that the
monitor data is all the state has in the way of evidence against Benson. Even if
it were, however, Blackburn said, it wouldn't make that evidence less
compelling.

"Let's
pretend (what he's saying is) true," Blackburn said. "There are 16 reported
burglaries, and we have GPS data that says his client was at those homes."

Benson,
32, is facing two indictments that include a whopping 18 burglary charges, as
well as two counts of grand theft involving a firearm or ordnance, and one
count each of trespass in a habitation and theft of drugs.

On
Dec. 10, Hedrick filed a motion in Athens County Common Pleas Court, asking
Judge Michael Ward to bar Blackburn's office from using any evidence about the
monitor tracking in court, unless the state can prove the scientific bona fides of the ankle monitor.

Output
documents from the device that the state has provided, Hedrick wrote, "purport
to show (Benson) was present at certain addresses at particular dates and
times. However, the state has provided no explanation as to how the system that
allegedly places (him) at particular residences works or how reliable it is."

Among
the evidence he'd like to see, Hedrick added, is the rate of errors for the
device, and verification that the monitor was working properly on the pertinent
dates.

The
defense attorney lost the first round on this issue, however. After a hearing
Jan. 11, Judge Ward denied his motion. In his ruling, the judge noted that the
only witness at the hearing was Andrew Keister, an employee of ETAT
Enterprises, the company that fastened a SecureAlert GPS monitor onto Benson.

Keister's
testimony, according to Ward, was that "The company trained him on the use of
this device. The company showed him how reliable this device is." The ruling
added that the ETAT employee "is not a scientist. He did not design the
tracking device nor does he have a detailed knowledge of how the device works."
He reportedly testified that he does know that six to nine satellites and
cell-phone towers track the wearer of each device, and that a satellite signal
hits the device every second, reporting the wearer's location.

Though
he must test the machine to see if it's working before he installs it, Keister
told the court that "he is not required to calibrate the machine prior to its
use." He testified that in three-and-a-half years of using the device, he "has
never seen a deviation," and has never seen it report a wrong location for a
wearer.

Ward
ruled against the defense, citing a federal case in which a court ruled that "a
lay witness could testify about the reliability and authenticity of a GPS
device."

In
that case, the court found that the issues surrounding the accuracy of GPS
devices and software "were not so scientifically or technologically grounded
that expert testimony was required to authenticate the evidence…"

Ward
added at the end of his ruling that "At the most, the state should have a
witness well-versed in GPS data systems available to authenticate GPS records."

Hedrick
said he's not giving up on the issue yet, and in a Jan. 16 motion, demanded the
state turn over evidence including all the output from Benson's monitor.

"I
want the data, and I want my own expert to review it," he explained.

The
attorney maintained Friday that if all the alleged burglaries were tried
separately, and in each case the best evidence the state could produce was
printouts suggesting Benson was somewhere near the crime sometime around the
time it occurred, the weakness of each case would be blatantly evident.

"I'd
win every single one of them," he predicted. Therefore, he suggested, putting
them all together doesn't make the GPS evidence any more reliable.

Blackburn
disagreed, suggesting that it's precisely the accumulation of GPS evidence
showing Benson near an alleged crime scene time and time again that will make
it, and validly, convincing to a jury.